The PEOPLE, Respondent, v. PHILIP O'BRIEN, Appellant, 78 Cal. 41

The Court. — Defendant was convicted of murder in the second degree. The judgment directs imprisonment for ten years in the state prison at San Quentin. The first point made by appellant is, that the court erred in admitting in evidence the coat worn by the deceased at the time of his death. It is said that there was no evidence to show that it was in the same condition at the trial that it was in when taken from the body of the deceased, — no evidence that there were any cuts in the coat or vest, or that the part of the body on which the wound was inflicted was covered by the coat or vest.

It has been held that clothing worn by the deceased at the time of the homicide is admissible in evidence as a part of the res gestee. It is frequently important evidence, tending to prove the violence of the blow, and the course or direction of the bullet or knife. (People v. Hong Ah Ducke, 61 Cal. 391; People v. Knapp, 71 Cal. 1.) It is true, as stated by counsel for appellant, that there is nothing to show whether the coat was in the same condition as when taken from the body of the deceased, but no objection was made to the introduction of the coat in evidence upon that ground.

The ground of objection was, “that the best evidence is already in, the evidence of the wound as shown by the doctor, and that is superior to any holes in the old clothes.” To entitle the defendant to the benefit of the point he now makes, we think there should have been a specific objection to the clothes, on the ground that the prosecution had not shown that they were in the same condition at the trial as when they were taken from the deceased.

It is claimed that the court erred in refusing to give the following instruction: “And if you entertain a reasonable doubt, after consideration of all the evidence in the case, as to whether the defendant acted in self-defense, you should acquit the defendant.” The instruction was properly refused. The court fully and correctly instructed the jury on the question of self-defense and reasonable doubt.

The following instruction was refused: “You are instructed that if, after consideration of all evidence in the case, you have a reasonable doubt as to whether the defendant or the deceased was the aggressor, you should give the defendant the benefit of that doubt,” For the same reasons in holding that the refusal to give the first instruction quoted was not error, we think there was no error prejudicial to the defendant in refusing to give this instruction.

The court gave the following instruction: “As to the question of intention, gentlemen, you must arrive at it from all the circumstances surrounding the commission of the alleged act, which is charged to be criminal. Of course, you will understand that we cannot look into the mind and see what its workings are. We cannot bring a photograph of the human mind and exhibit it to you so as to demonstrate clearly and absolutely what the workings of such minds are. Hence, from necessity, the law says you shall gather the intention with which

an act is done from all the circumstances surrounding the commission.” It is contended that the jury were bound, under this instruction, to look to the circumstances alone for evidence or proof of the intent with which the act of the defendant was committed. The latter testified that he stabbed the deceased with the intention and for the purpose of preventing the deceased from stabbing him.

It is said that the defendant’s testimony on the question of intent being no part of the res gestee, or of the “circumstances surrounding the commission of the act,” therefore, under the instruction last quoted, the jury could not consider the defendant’s testimony on the question of intention. We cannot agree with counsel in his view of the effect of this instruction.

The jury were instructed that, in determining whether the defendant had reasonable grounds for believing that he was in danger of losing his life or receiving great bodily harm, etc., they “should consider all these facts in connection with all the other evidence in the case in determining whether the deceased commenced the affray, and whether the defendant acted in self-defense.” The court further said: “You will weigh carefully the testimony of all the witnesses in the case, and give to their testimony such credit and weight as in your consciences you believe them entitled to.” Speaking of the defendant’s testimony, the jury were told not to disregard or discredit it solely because the defendant was accused of crime, but that they should judge of his testimony fairly and considerately, applying the same tests, as far as they were applicable to his testimony, that they would apply to all the other witnesses in the case.

The most serious question in the case is that which relates to the following instruction, which was given by the court: “To justify a homicide, the danger menacing the defendant must be present, or apparently so to him, and it must be imminent, or appear so to him at the time of his acting, and the killing must be done on a well-founded belief that it was necessary for the defendant to kill the deceased at the time to save himself from death or from great bodily injury.

The appearance of danger to life or limb which will justify a man in taking the life of another must be an honest one, one that is well-grounded, or apparently so to him, and must arise out of a reasonable cause.

A case which originates in the fault of the person himself, in a quarrel which he has provoked and brought on, in a danger which hé has voluntarily brought upon himself by his own misconduct, cannot be considered reasonable or sufficient in law to support a well-grounded apprehension of imminent danger to his person, and which will support the plea of self-defense.....And again, let me say to you, gentlemen, that no person when he is safe and secure from danger has a right to seek his adversary, being armed at the time with a dangerous or deadly weapon, and after seeking his adversary, then provoke a quarrel with that adversary, and during that quarrel, thus provoked or invited by himself, to feloniously use a dangerous or deadly weapon and take his life, and then come into court and claim that he acted in self-defense.

The right to take human life, and justify it on the ground of self-defense, is based upon necessity, or apparent necessity, at the time of the killing.” It is claimed that under this instruction the defendant could not have the benefit of the plea of self-defense, however remote or trifling the fault might be, and no matter what the intention of the defendant was at the time the cause originated with him; that the jury were informed, if they found the defendant guilty of any misconduct, they should deny him the benefit of the plea of self-defense, without regard to the degree or character of his misconduct.

If the instruction had not been qualified by others given directly in connection with it, we should be inclined to hold with the appellant, but the court in the same instruction said: “And in that connection, gentlemen, I am asked to instruct you, and I do instruct you in the words asked, and which you will consider, as part of the charge of the court, binding upon you, that a party is not deprived of the right to defend himself because he may have by words invited the other to fight. Such invitation does not warrant the party challenged to make an assault with a deadly weapon.

Neither is a party deprived of the right to defend his person from a felonious assault because he began the affray, if he afterward, and before the fatal blow was struck, in good faith endeavored to withdraw from the combat.....To justify a person in killing another in self-defense, it must appear .... that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given. ” Taking the different portions of the instruction together, we think the jury must have understood the court to say that a person who arms himself with a deadly weapon for the purpose of seeking his adversary and provoking a quarrel with him cannot feloniously use such weapon to take the life of his adversary, and then come into court and claim that he acted in self-defense.

The jury were told in very clear terms that a party is not deprived of the right to defend his person from a felonious assault because he began the affray, if he afterward, and before the fatal blow was struck, in good faith endeavored to withdraw from the combat. We therefore cannot say that the court erred. We have discussed the charge of the court upon the assumption that it is a part of the record herein. On the twenty-seventh day of April, 1888, there was filed in the court below a bill of exceptions, duly certified and signed by the judge, but the oral charge of the court is not incorporated into the bill.

There is in the transcript a copy of what purports to be a charge to the jury, given by the judge at the trial of this case, and filed by the clerk on February 8, 1888; but it is in no way authenticated. The clerk certifies “ the foregoing [including this document] to be full, true, and correct copies of the various papers of record and on file in my [his] office in the above-entitled cause, and that the same constitute the transcript on appeal” ; but the copy is not approved by the judge, and has not even the certificate of the official reporter as to its correctness. As was said in People v.

January, 77 Cal. 181, “ the clerk cannot give verity to what purports to be the instructions given or refused, by inserting them in the judgment roll.” It is claimed that the motion for a new trial ought to have been granted on the ground of newly discovered evidence. Waiving the objection which is made by the attorney-general, that acts of diligence in discovering what the witnesses would testify to are not shown in the transcript, we think that the newly discovered evidence is cumulative.

The court below doubtless considered it to be such, and was of the opinion that the verdict of the jury would not be different if the testimony of the proposed witnesses could be had on a new trial. The principal fact stated in the affidavits on motion for a new trial is that the affiants therein saw Rosengrave raise a knife or dagger to strike the defendant at the time of the difficulty.

But the testimony of the defendant, and of the witness White, is to the same effect, and the case, so far as the defendant’s theory is concerned, was put fairly before the jury upon the hypothesis that Rosengrave had, in fact, first assaulted the defendant with a knife or dagger. Judgment and order affirmed. Paterson, J., dissented. Rehearing denied,